Judge overturns law that lets governor block rules by DPI superintendent

2012-10-31T08:00:00Z 2012-10-31T16:27:33Z Judge overturns law that lets governor block rules by DPI superintendentED TRELEVEN | Wisconsin State Journal | etreleven@madison.com | 608-252-6134 madison.com

Gov. Scott Walker's power to oversee the rule-making authority of the state superintendent of public instruction, which he signed into law last year, was overturned Tuesday by a judge because the law violates the state constitution.

Dane County Circuit Judge Amy Smith wrote in a decision that the law, which allows the governor and in some cases the secretary of the state Department of Administration to block rules proposed by state agencies, violates a provision in the state constitution that sets out the duties of the state superintendent of public instruction.

Smith's ruling only voids the law as it pertains to the superintendent of public instruction, who is unique among state department heads in having his duties spelled out in the state constitution.

"Administrative rule-making is an important way in which a superintendent exercises his or her constitutional authority over the supervision of public instruction," Smith wrote. "Because Act 21 allows the governor to bar the superintendent from proposing rules, or even from beginning the process of rule-making by submitting a scope statement to the Legislature, Act 21 places the governor in a position superior to the superintendent in the supervision of public instruction."

The law requires all state agencies, including the state Department of Public Instruction, to submit scope statements and proposed administrative rules to the governor for approval. No other rule drafting can occur until approval is granted. It also requires DOA approval for rules that may lead to $20 million in costs for businesses, municipalities or individuals.

Even before the change in the law, rules ultimately have to be approved by the Legislature.

Democrats had labeled the law a power grab by Walker when it was proposed after Walker was elected and before he took office. He signed it into law in May 2011.

The ruling came in a lawsuit brought by Madison Teachers Inc., the Wisconsin Education Association Council and others. Defendants were Walker, DOA Secretary Mike Huebsch and schools superintendent Tony Evers. Smith's decision, however, notes that Evers also asked the court to block the law. Evers issued a statement Tuesday saying he was pleased with Smith's ruling.

Lester Pines, who represented the teachers groups in court, said the law as applied to DPI ran counter to a unanimous state Supreme Court decision in 1996 that said the Legislature cannot give equal or superior authority to any "other officer."

"On its face (Act 21) was putting the governor in a position superior to the superintendent of public instruction," Pines said. "The court told the governor, 'you can't do that.'"

Executive Assistant Attorney General Steven Means said the decision is being reviewed. The governor's office said an appeal is likely.

"We are confident we'll win upon appeal," Walker spokesman Cullen Werwie said.

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